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Strengthening and preserving the attorney general guidelines for media subpoenas

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Since 2013, the Reporters Committee for Freedom of the Press has led a group of media organizations — known as the News Media Dialogue Group — in working with the Department of Justice to strengthen and preserve the federal guidelines that protect journalists and news outlets from being forced to disclose their confidential sources or other newsgathering records in the course of leaks probes or other federal investigations.

The guidelines, created by the attorney general, have been part of the Code of Federal Regulations since the 1970s and detail how and under what circumstances federal prosecutors can issue subpoenas, court orders or search warrants for journalists’ testimony, work product or other records. They are intended to balance national security interests with protections for a free press by requiring that federal prosecutors only use these legal tools as a last resort in investigations — meaning only when the information sought is essential to an investigation and prosecutors have exhausted all other possible sources for it.

The DOJ released updated guidelines in February 2014 that addressed many of the News Media Dialogue Group’s proposed changes, including expanding the categories of newsgathering records that fall under the guidelines. The revisions also included new requirements that the attorney general approve the use of law enforcement tools targeting journalists and the DOJ provide advance notice to journalists or news organizations prior to seizing their records from a third party (unless such notification would pose a “substantial threat” to the investigation). The DOJ further modified the guidelines in January 2015 in response to additional concerns raised by the News Media Dialogue Group.

The News Media Dialogue Group’s work continues today in the wake of then-Attorney General Jeff Sessions’ August 2017 announcement that the DOJ would revisit the guidelines as part of its intent to pursue more leak investigations. Below are key letters, statements, press releases and reports issued since 2013 related to the guidelines.

2013

5/14/13 Letter to the attorney general protesting subpoena of AP phone recordsThe Reporters Committee led a coalition of media organizations in submitting a letter to Attorney General Holder after the DOJ seized AP telephone records. The letter notes aspects of the guidelines that the DOJ ignored and urged it to explain “how government lawyers overreached so egregiously in this matter and describe what the Department will do to mitigate the impact of these actions.”

5/21/13 Statement from Reporters Committee’s Bruce Brown on Justice Department investigations of journalistsReporters Committee Executive Director Bruce Brown issued a statement condemning the DOJ’s execution of a search warrant for email communications between Fox News reporter James Rosen and a confidential source. “The Justice Department’s decision to treat routine newsgathering efforts as evidence of criminality is extremely troubling and corrodes time-honored understandings between the public and the government about the role of the free press,” said Brown.

6/19/13 Reporters Committee News: AP chief points to chilling effect after Justice investigationOne month after the DOJ’s seizure of AP phone records was made public, AP President and CEO Gary Pruitt noted in a speech at the National Press Club that it had caused longtime, trusted sources to become nervous about speaking to AP reporters. “I can tell you that this chilling effect is not just at AP,” said Pruitt. “Journalists at other news organizations have personally told me it has intimidated sources from speaking to them.”

6/21/13 Letter to the attorney general proposing changes to the guidelinesIn a letter, the Reporters Committee detailed the media coalition’s proposed changes to the guidelines, including adding a requirement that the DOJ provide advance notice to journalists and news organizations before obtaining their records from a third party; revising the scope of the guidelines to cover all newsgathering-related records stored with third parties and all types of legal tools used to demand such records; and instituting the public release of an annual report on the DOJ’s number of media-related demands and an annual meeting between journalists and DOJ officials.
Related:

Department of Justice Report on Review of News Media Policies (7/12/2013)The DOJ released a report on its review of news media policies and outlined notable revisions to the guidelines, including, among other things, providing advance notice of seizures to journalists and news organizations “in all but the most exceptional cases”; enhancing approvals and heightening standards for the use of search warrants and Section 2703(d) orders; establishing an internal DOJ committee to advise on media-related records demands; centralizing review and public reporting on media-related records demands; and establishing the News Media Dialogue Group.

7/30/13 Summary of changes to the attorney general guidelinesThe Reporters Committee and AP General Counsel Karen Kaiser compiled a summary of the changes to the guidelines. The document includes information on the regulations as they were in 2013, the media coalition’s proposals, and the attorney general’s July 2013 recommendations in response to those proposals.

2015

1/14/15 Attorney General Memorandum: Updated policy regarding obtaining information from, or records of, members of the news media In a memorandum to department employees, Attorney General Holder explained some of the notable changes in another round of revisions to the guidelines. These include eliminating of the phrase “ordinary newsgathering activities” in an effort to protect all newsgathering activities from being subjected to subpoenas, court orders, or search warrants; and requiring prosecutors to consult the Policy and Statutory Enforcement Unit of the Criminal Division’s Office of Enforcement Operations before obtaining information from members of the news media.

1/14/2015 DOJ Press Release: Attorney General Holder announces updates to Justice Department media guidelines
In light of expanded revisions to the DOJ’s policy regarding media guidelines, the Office of the Attorney General posted a press release highlighting changes and affirming the need for balance between law enforcement interests and the free press. “This updated policy is in part the result of the good-faith dialogue the department has engaged in with news industry representatives over the last several months,” said Attorney General Holder. “These discussions have been very constructive and I am grateful to the members of the media who have worked with us throughout this process.”

5/16/17 Statement from the Reporters Committee: No president gets to jail journalistsAfter The New York Times reported on the details of a memo written by former FBI Director James Comey that documented President Trump’s suggestion that Comey consider imprisoning reporters who publish classified information, Reporters Committee Executive Director Bruce Brown issued a statement calling the comments dangerous and affirming constitutional protections for a free press. “Reporters are protected by judges and juries, by a congress that relies on them to stay informed, and by a Justice Department that for decades has honored the role of a free press by spurning prosecutions of journalists for publishing leaks of classified information,” said Brown.

2018

6/8/2018 Reporters Committee statement on DOJ seizure of journalist Ali Watkins’ communications recordsReporters Committee Executive Director Bruce Brown issued a statement condemning the DOJ’s seizures of journalist Ali Watkins’ phone and email records as part of an ongoing criminal investigation. “Seizing a journalist’s records sends a terrible message to the public and should never be considered except as the last resort in a truly essential investigation,” said Brown, who also called on the department to explain how its actions adhered to its guidelines.